The applicant applied for asylum in 2010 and was refused in February, 2011. She did not apply for subsidiary protection within the 15 day time-limit prescribed in the letter refusing her application for asylum. Instead, she applied for leave to remain. In 2013, a deportation order was made against her. She then consulted new solicitors who applied to the Minister for Justice for revocation of the order and made a belated application for subsidiary protection. The Minister refused to entertain the belated application, contending that she had not made it within the administratively imposed 15 day period. Evidence showed that the 15 day time period was frequently extended in other cases on a case-by-case basis.
The applicant maintained that the 15 day time-limit infringed the principle of equivalence – according to which exercise of an EU law right could not be subject to conditions more stringent than those applicable to the exercise of similar rights under domestic law – because no similar time limit was prescribed in respect of refugee applications and that the decision to refuse to extend time to allow her to make her belated application was unreasonable, because the Minister’s refusal to entertain it was predicated on the incorrect assumption that she had made a conscious decision not to apply for subsidiary protection in 2011, the evidence showing that her former solicitors’ policy was not to make such applications unless it they considered that there was a reasonable prospect of success.
The Court of Appeal decided to refer the matter to the Court of Justice of the EU.
The Court of Appeal held that, in assessing the broader question of whether the principle of equivalence was engaged, a number of individual aspects of the overall claim also had to be addressed: first, was the comparison between claims based on asylum and subsidiary protection sufficiently similar?; secondly, if so, could it be said the claim to asylum rested exclusively on EU law or could it be regarded as a “mixed” question of EU and national law?; thirdly, did it suffice for the purposes of the principle of equivalence that the comparator itself was derived not only from domestic law but also from EU law.
It held, first, that applications for asylum, on the one hand, and for subsidiary protection, on the other, were sufficiently close comparators for the purpose of the principle of equivalence. They were twin and complementary parts of the international protection system. Secondly, it considered that applications for asylum (which it apparently took to mean refugee status) derived partly from EU and national law. Thirdly, the right to asylum contained in the Refugee Act 1996 was to be taken as giving effect to the State’s obligations under the Qualification Directive. This gave rise to the question of whether was an appropriate comparator for the purpose of the principle of equivalence.
The Court of Appeal decided to refer the following questions to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU):-
- can an application for asylum, which is governed by domestic legislation which reflects a Member State’s obligations under the Qualification Directive, be regarded as an appropriate comparator in respect of an application for subsidiary protection for the purposes of the principle of equivalence?
- if the answer to the first question is in the affirmative, is it relevant for this purpose that the time limit imposed in respect of applications for subsidiary protection (i) has been imposed simply administratively and (ii) that the time limit serves important interests of ensuring that applications for international protection are dealt within a reasonable time?